Opinion
20-3673 20-3696
03-09-2022
UNITED STATES OF AMERICA, Appellee, v. GERALD MARTIN, also known as G-Rite, RONNIE KING, also known as Banga, Defendants-Appellants, DA'QUAN JOHNSON, also known as Bloody, also known as Buddha, JAMES JOHNSON, also known as Jimmy, KENNETH MOORE, also known as Doogie, JAMEKE BROWN, also known as Lingo, DAQUAN COUCH, also known as Cheese, DARIN FIELDS, also known as Ruger, ANTHONY FORD, also known as Red, FLOYD GILHAM, also known as Flizzy, CHRISTOPHER GREBINGER, also known as BRISCO, JAMES MCCALLUM, also known as Baby James, WILBUR RANDOLPH, also known as Wonka, ROSALY REYES, Defendants.
For Appellee: Scott Hartman, Danielle R. Sassoon, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY. For Defendant-Appellant Martin: Roland R. Acevedo, Law Office of Roland R. Acevedo, New York, NY. For Defendant-Appellant King: Ronnie King, pro se, Oklahoma City, OK.
UNPUBLISHED OPINION
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of March, two thousand twenty-two.
Appeal from judgments of the United States District Court for the Southern District of New York (Seibel, J.).
For Appellee: Scott Hartman, Danielle R. Sassoon, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.
For Defendant-Appellant Martin: Roland R. Acevedo, Law Office of Roland R. Acevedo, New York, NY.
For Defendant-Appellant King: Ronnie King, pro se, Oklahoma City, OK.
PRESENT: John M. Walker, Jr. Steven J. Menashi, Eunice C. Lee, Circuit Judges.
Upon due consideration, it is hereby ORDERED, ADJUDGED, and DECREED that the judgments of the district court are AFFIRMED.
In these consolidated appeals, Defendants-Appellants Gerald Martin and Ronnie King appeal from judgments of the U.S. District Court for the Southern District of New York (Seibel, J.) sentencing Martin to 120 months' imprisonment and King to 150 months' imprisonment for one count of conspiracy to violate the racketeering laws of the United States, in violation of 18 U.S.C. § 1962(d). We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.
Martin's Appeal
Between 2008 and 2014, Martin participated in a street gang, which operated in and around Yonkers, New York. In connection with an ongoing dispute between warring gangs, on January 14, 2011, Martin shot a rival gang member multiple times in the upper torso. The rival gang member survived after undergoing surgery.
On September 15, 2015, pursuant to a written plea agreement with the government, Martin pleaded guilty to two counts. Count One charged Martin with conspiracy to violate the racketeering laws of the United States, in violation of 18 U.S.C. § 1962(d). Count Two charged Martin with possessing, using, and carrying a firearm during and in relation to the racketeering conspiracy charged in Count One, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2.
On March 29, 2016, at the sentencing hearing, the district court determined that the applicable Federal Sentencing Guidelines range was 138 to 157 months' imprisonment-that is, 78 to 97 months' imprisonment for Count One and a 60-month mandatory consecutive sentence for Count Two. After considering the 18 U.S.C. § 3553(a) factors, the district court sentenced Martin to a below-Guidelines sentence of 130 months' imprisonment.
After the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019), the government consented to the vacatur of Martin's § 924(c) conviction.
The district court then resentenced Martin on October 21, 2020. After hearing from both parties, the district court sentenced Martin to 120 months' imprisonment. Martin timely appealed.
Martin challenges the district court's sentence as procedurally unreasonable. A sentence is procedurally unreasonable if the district court (1) "fails to calculate (or improperly calculates) the Sentencing Guidelines range," (2) "treats the Sentencing Guidelines as mandatory," (3) "fails to consider the § 3553(a) factors," (4) "selects a sentence based on clearly erroneous facts," or (5) "fails adequately to explain the chosen sentence." United States v. Jesurum, 819 F.3d 667, 670 (2d Cir. 2016) (quoting United States v. Aldeen, 792 F.3d 247, 251 (2d Cir. 2015)); see also Gall v. United States, 552 U.S. 38, 51 (2007). When, as in this case, a defendant does not raise a claim of procedural error with the district court, this court reviews for "plain error." United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007).
Martin argues that the district court committed procedural error by disregarding the applicable Guidelines, interjecting the judge's personal opinions, and considering other hypothetical ways that Martin could have been charged under § 924(c). We disagree. The district court did not disregard the Guidelines. Rather, the district court "start[ed] with the sentencing guidelines" and calculated the applicable Guidelines range of 78 to 97 months' imprisonment. App'x 209-10. The district court also "conduct[ed] [an] independent review of the sentencing factors," United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc), making clear that it "considered the guidelines" and "all the 3553(a) factors," App'x 215. The district court then applied an upward variance from the Guidelines after it considered the § 3553(a) factors that applied to Martin's specific case. See United States v. Bershan, 845 Fed.Appx. 37, 40 (2d Cir. 2021) (holding that no procedural error occurred when the district court properly calculated the Guidelines range and "provided an adequate explanation for its upward variance from the Guidelines").
What Martin characterizes as the district judge's personal views were instead permissible observations about the seriousness of Martin's offense and the need to promote respect for the law under § 3553(a)(2)(A). The district court concluded that the Guidelines sentence for attempted murder was inadequate to address Martin's specific case because it was attributable only to "good luck" that Martin's victim did not die after Martin shot him numerous times at close range. App'x 210. The district court explained that a 78-month sentence for "shoot[ing] somebody with intent to kill … just seem[ed] way too low," App'x 210, and "would undermine respect for the law, because it's just not enough time for something this serious," App'x 215.
Martin next argues that it was procedurally improper for the district court to consider "other hypothetical ways that Mr. Martin could have been charged to avoid dismissal of the 924(c) count despite the Supreme Court's decision in Davis." Appellant's Br. 20. The district court observed that Davis "operates as something of a windfall" for Martin because "the shooting itself it seems to me could have been charged as a VCAR" under the Violent Crimes in Aid of Racketeering Statute, 18 U.S.C. § 1959. App'x 212. But the district court nonetheless stated that "[t]he bottom line … remains the same, which is what is the appropriate total punishment and that, as always, turns on the 3553(a) factors, one of which is the guidelines." App'x 212. Within that framework, it was proper for the district court to conclude that vacatur of the § 924(c) count did not warrant a meaningful reduction in Martin's overall sentence.
Indeed, Davis expressly recognized that "when a defendant's § 924(c) conviction is invalidated" and the case is remanded for resentencing, "the district court may increase the sentences for any remaining counts if such an increase is warranted." 139 S.Ct. at 2336 (internal quotation marks omitted). The district court reasonably determined that an increase in Martin's sentence on Count One was warranted because "although the Section 924(c) count was vacated," the "facts about the offense, [the defendant]'s past misconduct, and his character remained the same." United States v. Rosario, 834 Fed.Appx. 661, 663 (2d Cir. 2021). Here, the district court explained that when it originally sentenced Martin, it examined his conduct, determined what the "total punishment should be," and then subtracted 60 months to arrive at the sentence for Count One. App'x 210. It was not error for the district court at Martin's resentencing to impose a higher sentence on Count One to achieve an overall sentence based on an assessment of what the appropriate total punishment should be. See United States v. Grebinger, No. 20-CR-1025, 2021 WL 5142709, at *2 (2d Cir. Nov. 5, 2021) (concluding that this approach to sentencing is appropriate). We find no error-let alone plain error-in the district court's explanation for imposing a 120-month sentence.
Martin also challenges his sentence on the ground that the government violated the plea agreement by arguing that Davis was a windfall for him and by seeking an above-Guidelines sentence. "We review interpretations of plea agreements de novo and in accordance with principles of contract law." United States v. Riera, 298 F.3d 128, 133 (2d Cir. 2002). Under the plea agreement, "the government retained the ability to seek an upward variance based on sentencing factors under 18 U.S.C. § 3553(a)," and that is what the government did. United States v. Parrish, 755 Fed.Appx. 59, 62 (2d Cir. 2018). In doing so, the government permissibly argued that reimposing the district court's original sentence would avoid unwarranted disparities between Martin and defendants who had committed similar offense conduct but whose convictions were unaffected by Davis .
King's Appeal
King was a member of the same street gang as Martin, and he also shot a rival gang member. On January 15, 2016, King pleaded guilty to one count of conspiracy to violate the racketeering laws of the United States, in violation of 18 U.S.C. § 1962(d), and to one count of knowingly using and carrying firearms, which were discharged, during and in relation to the racketeering conspiracy, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2. On April 21, 2016, the district court sentenced King to an aggregate term of 150 months' imprisonment. After the government consented to vacatur of his § 924(c) conviction in light of Davis, the district court sentenced King to 150 months' imprisonment on the remaining racketeering charge. King timely appealed.
The government moves for summary affirmance, arguing that there are no non-frivolous issues that can be raised on appeal. King did not file an opposition to the government's motion. We grant the government's motion because King's sentence was lawful and both procedurally and substantively reasonable.
We previously granted King's counsel's motion to be relieved as counsel pursuant to Anders v. California, 386 U.S. 738 (1967).
We have considered the appellants' remaining arguments, which we conclude are without merit. For the foregoing reasons, we GRANT the government's motion for summary affirmance of the judgment against King and AFFIRM the judgments of the district court as to Martin and King.
[*] The Clerk of Court is directed to amend the caption as set forth above.